489 F.

2d 152

In the Matter of The Complaint of Gypsum Carrier, Inc.,

Bareboat Charterer, and Oceanic Carrier, Inc.,
Owner of the MOTOR SHIP PACIFIC CARRIER,
for exoneration from or
limitation of liability.
GYPSUM CARRIER, INC., Third Party Plaintiff-Appellant,
v.
UNION CAMP CORPORATION, Third Party DefendantAppellee.
No. 73-1651.

United States Court of Appeals, Fifth Circuit.

Feb. 8, 1974.

George H. Chamlee, Gustav R. Dubus, III, Savannah, Ga., for Gypsum

Carrier, Inc.
Kirk M. McAlpin, Atlanta, Ga., Stanley R. Wright, Jacksonville, Fla., for
Union Camp Corp.
Spencer Connerat, Jr., Savannah, Ga., for the Seaboard Coast Line
Railroad Co.
Fred S. Clark, Savannah, Ga., Manuel A. Sequeira, Jr., New York City,
for Underwriters of Seaboard Coast Line Railroad Co.
Edward T. Brennan, Savannah, Ga., for M/V Mariner & M/V Costos
Frange.
W. J. Snowden, Moore-McCormack Lines, Inc., New York, City,
Courtney W. Stanton, Asst. Atty. Gen. of Ga., Atlanta, Ga., for Ga. Ports
Authority.
Thomas S. Gray, Jr., Savannah, Ga., for Hamburg-Suderamerikanische
Dampschiffahrts Gesellschaft.
Gignilliat & Abbott, Savannah, Ga., for Aztec Trading Co. S.A.

Julian F. Corish of Corish, Smith, Remler & Moore, Savannah, Ga., for
American Oil Co.
Appeal from the United States District Court for the Southern District of
Georgia.
Before GEWIN, AINSWORTH and NORGAN, Circuit Judges.
AINSWORTH, Circuit Judge:

The question for decision in this matter is whether there is jurisdiction in

admiralty of claims of the bareboat charterer and the owner of a vessel against a
shore-based paper mill, engaged in a non-maritime manufacturing activity, on
allegations that smoke emitted from the mill so obstructed navigation as to
cause the vessel to collide with a railroad bridge spanning the waterway on
which it was proceeding to sea.

On April 23, 1971, the M/S PACIFIC CARRIER, owned by Oceanic Carrier,
Inc., and under bareboat charter to Gypsum Carrier, Inc., appellants herein,
discharged a cargo of gypsum rock at Savannah, Georgia, and was proceeding
downstream on the Savannah River ship channel bound for Halifax, Nova
Scotia. As the vessel approached a railroad Bridge spanning the channel, it
suddenly became engulfed in smoke, fumes and gases emanating from the
smokestacks of a pulp and paper mill owned by Union Camp Corporation,
situated on the bank of the channel immediately upriver from the bridge,
causing loss of all visibility by the vessel's crew and resulting in a collision by
the vessel with the bridge. Both bridge and vessel sustained heavy damage.

Seaboard Coast Line Railroad Company, owner of the bridge, immediately

filed an in rem action for damages against the vessel and caused its seizure.
Gypsum Carrier, Inc. thereafter instituted the present exoneration and limitation
of liability proceeding (pursuant to 46 U.S.C. 183-189), in which Oceanic
Carrier, Inc., the shipowner, intervened. Gypsum and Oceanic later filed in this
limitation proceeding a third-party complaint and cross-claim, respectively,
under Rule 14(c), Fed.R.Civ.P.,1 against Union Camp, the allegations contained
therein charging that the smoke emitted by the paper mill interfered
unreasonably with the vessel's use of the waterway and constituted a nuisance
and an obstruction to navigation. In the cross-claim of Oceanic there were
further allegations that Union Camp's activities violated the Georgia Air
Quality Control Act (Chapter 88-9, Code of Georgia) as well as federal
regulations pertaining to navigation lights and signals (33 C.F.R. 68.01-10 et

seq.). The acts complained of were said to be the proximate cause of the
collision. The parties sought damages and recovery over, and that all judgment
of claimants in the limitation proceeding be entered against third-party
defendant Union Camp under Rule 14(c), Fed.R.Civ.P.; and Oceanic sought in
the event of a finding of mutual fault divided damages in accordance with the
admiralty rule.
4

This appeal arises out of the district court's order sustaining Union Camp's
motions to dismiss for lack of admiralty jurisdiction, the third-party complaint
and cross-claim of shipowners against it.2 An interlocutory appeal was
authorized under 28 U.S.C. 1292.

We have carefully analyzed the order of the district court which dismissed the
impleader and cross-claim for lack of admiralty jurisdiction over Union Camp,
as well as the two decisions on which the district judge apparently justified his
conclusions, namely, Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,
409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), and Peytavin v.
Government Employees Insurance Company, 5 Cir., 1972, 453 F.2d 1121. In
our view, the cited cases not only do not support the conclusion reached by the
district court, but to the contrary sustain admiralty jurisdiction herein.
Accordingly, we reverse the order of the district court dismissing the impleader
and cross-claim of shipowners against Union Camp.

A secondary issue raised below is whether the doctrine of ancillary jurisdiction

extends to admiralty as well as to civil impleader so as to dispense with any
requirement of an independent basis of admiralty jurisdiction to implead a third
party under Rule 14(c), Fed.R.Civ.P. We do not reach this question inasmuch as
the maritime nature of the claims herein furnishes the independent basis
required for admiralty jurisdiction under the rule.

In Executive Jet, supra, a jet airplane, taking off from an airport adjacent to
Lake Erie in Cleveland, Ohio, struck a flock of seagulls, causing it to crash and
sink in the navigable waters of nearby Lake Erie. The owners of the airplane
brought suit in admiralty for its loss. The question before the Supreme Court
was 'whether the petitioners' suin for property damage to the aircraft, allegedly
caused by the respondents' negligence, lies within federal admiralty
jurisdiction.' 409 U.S. at 250, 93 S.Ct. at 495. The Court held that it did not,
concluding that 'maritime locality alone is not a sufficient predicate for
admiralty jurisdiction in aviation tort cases,' 409 U.S. at 261, 93 S.Ct. at 501,
and after a comprehensive discussion of the complexities of problems involved
in the application of the strict locality test,3 said further:

'All these and other difficulties that can arise in attempting to apply the locality
test of admiralty jurisdiction to aeronautical torts are, of course, attributable to
the inherent nature of aircraft. Unlike waterborne vessels, they are not
restrained by one-dimensional geographic and physical boundaries. For this
elementary reason, we conclude that the mere fact that the alleged wrong
'occurs' or 'is located' on or over navigable waters-- whatever that means in an
aviation context-- is not of itself sufficient to turn an airplane negligence case
into a 'maritime tort.' It is far more consistent with the history and purpose of
admiralty to require also that the wrong bear a significant relationship to
traditional maritime activity. We hold that unless such a relationship exists,
claims arising from airplane accidents are not cognizable in admiralty in the
absence of legislation to the contrary.'4

409 U.S. at 268, 93 S.Ct. at 504.

10

The holding in Executive Jet, as indicated from the foregoing language of the
opinion, is confined of course to aircraft. Nevertheless, the Court spoke with
approval of the increasing tendency of Congress and the courts to predicate
maritime jurisdiction generally on the relationship of the wrong to maritime
activities instead of on the locality of the tort alone. In this respect it said:

11

'In sum, there has existed over the years a judicial, legislative, and scholarly
recognition that, in determining whether there is admiralty jurisdiction over a
particular tort or class of torts, reliance on the relationship of the wrong to
traditional maritime activity is often more sensible and more consonant with
the purposes of maritime law than is a purely mechanical application of the
locality test.'

12

409 U.S. at 261, 93 S.Ct. at 501.

13

As an example of cases holding that admiralty jurisdiction was improperly

invoked because the tort, while having a maritime locality, lacked a significant
relationship to maritime navigation and commerce, the Court in Executive Jet
cited Peytavin v. Government Employees Insurance Company, 5 Cir., 1972,
453 F.2d 1121, the second case relied on by the district court in dismissing the
claims against Union Camp below. In Peytavin, we concluded that a claim for
whiplash injuries sustained by an automobile passenger as the result of a rearend collision with another automobile was not within the jurisdiction of
admiralty, notwithstanding the fact that plaintiff's vehicle was parked on a
floating pontoon in navigable waters. Our reasoning was that the claim lacked
'substantial connection with maritime activities or interests.' 453 F.2d at 1127.

14

Both Executive Jet and Peytavin represent a departure from application of the
strict locality rule. They stress substantiality of the connection between the tort
and maritime activities as a more realistic criterion. In the instant case, if
locality of the tort were the only factor having a maritime connection, admiralty
jurisdiction would be lacking. However, the locality of the tort, the Savannah
River channel, where the 'substance and the consummation of the injury'5
presumably occurred, is only one maritime-connected factor. This is not one of
those 'borderline' problem cases, alluded to in Executive Jet,6 devoid of any
relationship between the tort and traditional maritime activities other than
location. The combination of factors in the instant case, in the context of
admiralty jurisdiction, supplies what was lacking in Executive Jet and Peytavin- a substantial maritime connection. Unlike the aircraft in Executive Jet and the
colliding automobiles in Peytavin, the motor vessel PACIFIC CARRIER is by
its very essence maritime. The alleged cause of its collision with the railroad
bridge, i.e., the smoke emitting from Union Camp's smokestocks, constituted a
navigational hazard by obstructing the vision of the ship's crew. The activities
of the shipowners at the time of the collision were essentially maritime-- the
transporting of cargo by vessel on navigable waters. Thus the fact that the
agency said to have obstructed navigation here had a nonmaritime origin is
irrelevant to any issue since it caused injury to a vessel then under way on
navigable waters. The maritime nature of the tort is therefore undeniable.
Executive Jet and Peytavin are not opposed to our holding here; to the contrary,
the propriety of our determination in supported by those decisions.

15

Appellee makes much of the fact that its paper mill is land based and engaged
in a non-maritime industry, in its attempt to avoid admiralty jurisdiction. But
this fact is not decisive. See Kelly v. Smith, 5 Cir., 1973, 485 F.2d 520.7 In
Kelly, the issue presented was whether claims for injuries inflicted on waterborne, fleeing deer poachers, by hunting rifles fired from shore by club
members of a private hunting club, were within admiralty jurisdiction. We
analyzed Executive Jet and Peytavin and found that under the rationale of those
decisions the circumstances in Kelly were sufficiently related to maritime
activities to sustain admiralty jurisdiction. 'Firearms-- and the injuries they
caused,' we said, 'are not so inherently indigenous to land as to preclude any
maritime connection.' 485 F.2d at 526. By analogy, smoke and the wind that
blows it across a body of water, as well as the resultant hazard and obstruction
to navigation, are much less inherently indigenous to land. the vessel in Kelly
was a 15-foot outboard motor boat, being used as a getaway vehicle by the
escaping poachers. By comparison the vessel here is an ocean-going, bulkcargo carrier, actively engaged in maritime commerce at the time of the
collision. We emphasized in Kelly the traditional concern of admiralty for the
safety of maritime commerce, saying:

16

'Policy militates toward admiralty jurisdiction in this case. The admiralty

jurisdiction of federal courts stems from the important national interest in
uniformity of law and remedies for those facing the hazards of waterborne
transportation. Rifle fire directed at a vessel, albeit a small one, on a major
commercial artery, and injuring the pilot, presents sufficient danger to maritime
commerce for the federal courts of admiralty to assume jurisdiction . . ..' 485
F.2d at 526.

17

When we consider the navigational hazards caused by blinding smoke and

gases, as evidenced by the extensive damage both to vessel and bridge in this
case, the Kelly parallel is clear. The tort claims of the shipowners here are of
far greater substance in a maritime context than were those approved by us in
Kelly.

18

Several cases cited by appellant, though pro-Executive Jet, are agreeable in

principle with the holding in that case, and are pertinent to the issue of
maritime jurisdiction here. Locality is still a viable consideration under
Executive Jet, and it is apparent that the courts in the following cases stressed
this principle. It is also true, as in Executive Jet, that these cases involved torts
of a maritime nature. For example, in this circuit's case of Southern Bell
Telephone & Telegraph Co. v. Burke, 5 Cir., 1933, 62 F.2d 1015, we were
concerned with a libel in admiralty by a shipowner for injury to its vessel's
smokestack while passing through the draw span of a highway bridge over a
river and coming in contact with telephone lines strung from one bank of the
river to the other. We rejected the respondent's contention that there was no
jurisdiction in admiralty as follows:

19

'The wrong and the injuries complained of having been wholly consummated
while the steamer was traveling in the navigable waters of the United States,
the claim based thereon is within the admiralty jurisdiction. Atlee v. Packet
Co., 21 Wall. 389, 22 L.Ed. 619; Philadelphia, Wilmington & Baltimore R.R.
Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 16
L.Ed. 433; Panama Railroad v. Napier Shipping Co., 166 U.S. 280, 17 S.Ct.
572, 41 L.Ed. 1004; Cleveland, Terminal & V. Railroad Co. v. Steamship Co.,
208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508, 13 Ann.Cas. 1215. We are of opinion
that there is no merit in the suggestion to the effect that the asserted claim was
kept from being cognizable in admiralty by the circumstance that the thing with
which the steamer collided was connected solely with upland beyond the shore
or border of the river, no part of it being in or covered by navigable waters.
Gonsalves v. Morse Dry Dock Co., 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228; F.
S. Royster Guano Co. v. Outten (C.C.A. 4 Cir.) 266 F. 484.'

20

In the America, D.C., E.D.N.Y., 1940, 34 F.Supp. 855, a barge owner filed a
proceeding in admiralty against the owner of a tanker with which it collided and
defendant impleaded E. I. DuPont & Company on allegations that it allowed its
shore-based plant to emit fumes or gases over the adjacent waters in such
volume and density that claimant of the vessel was unable to navigate and to
avoid doing the damage for which the libel was filed. To respondent's
exception to the jurisdiction the court held:

21

'The following cases indicate that a cause in personam in admiralty exists, if it

be proven that a tort arising on land takes effect on navigable waters, to the
injury of a vessel on behalf of which the cause is asserted: Philadelphia, W. &
B.R.R. Co. v. Philadelphia, etc., Co., 23 How. 209, 16 L.Ed. 433; Leonard v.
Decker, D.C., (2 Cir.) 22 F. 741; Galena, D.D. & M. Packet Co. v. Rock Island,
etc., 6 Wall. 213, 18 L.Ed. 753; The Normannia, D.C., (2 Cir.) 62 F. 469, at
472; Hermann v. Port Blakely Mill Co., D.C., (9 Cir.) 69 F. 646; Dorrington v.
Detroit, 6 Cir., 223 F. 232, at 242; Smith v. Lampe, 6 Cir., 64 F.2d 201.'

22

In Smith v. Lampe, 6 Cir., 1933, 64 F.2d 201, two vessels collided in a thick
fog allegedly because of the negligent signalling by respondent with the horn of
his automobile to the vessels in the fog. Libelant contended that respondent's
actions negligently interfered with the navigation of the boats and that the
negligence was the proximate cause of the damage. The Sixth Circuit answered
the jurisdictional question holding that the suit was properly brought in
admiralty and rejected respondent's contention that 'if any tort was committed,
it was committed on land,' thus making the action one at common law rather
than admiralty. The court said that where the negligent act originates on land
and the damage occurs on water, the cause of action is within the admiralty
jurisdiction; that 'the locality of the thing to be considered is that of the thing
injured, and not of the agent causing the injury, and that when the injury is to a
vessel afloat, even though the negligence originated on land, the tort is
maritime, and within the admiralty jurisdiction.' Id. at 202.

23

Whether we apply the criterion of Executive Jet and look to 'the relationship of
the wrong to traditional maritime activity,' 409 U.S. at 261, 93 S.Ct. at 501, or
the virtually identical test of Peytavin to determine if the tort has a 'substantial
connection with maritime activities or interests,' 453 F.2d at 1127, we reach the
definite conclusion that the claims asserted against Union Camp are maritime in
nature and clearly within admiralty jurisdiction.

24

Reversed.

Rule 14, Fed.R.Civ.P.:

Third-Party Practice
(c) Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or
maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a
third-party plaintiff, may bring in a third-party defendant who may be wholly
or partly liable, either to the plaintiff or to the third-party plaintiff, by way of
remedy over, contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences. In such a case the thirdparty plaintiff may also demand judgment against the third-party defendant in
favor of the plaintiff, in which event the third-party defendant shall make his
defenses to the claim of the plaintiff as well as to that of the third-party plaintiff
in the manner provided in Rule 12 and the action shall proceed as if the
plaintiff had commenced it against the third-party defendant as well as the
third-party plaintiff. As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28,
1966, eff. July 1, 1966.

The district judge noted in his order that 'diversity apparently exists between
the shipowner and Union Camp. It is possible that some remedy is available to
the shipowner at this stage of the litigation independently of admiralty.'

The Supreme Court in Executive Jet expressed its dissatisfaction with such a
test: 'The petitioners' argument, if accepted, would make jurisdiction depend on
where the plane ended up-- a circumstance which could be wholly fortuitous
and completely unrelated to the tort itself. The anomaly is well illustrated by
the hypothetical case of two aircraft colliding at a high altitude, with one
crashing on land and the other in a navigable river. If, on the other hand, the
respondents' position were adopted, jurisdiction would depend on whether the
plane happened to be flying over land or water when the original impact of the
alleged negligence occurred. This circumstance, too, could be totally fortuitous.
If the plane in the present case struck the birds over the Cleveland Lakefront
Airport, admiralty jurisdiction would not lie; but if the plane had just crossed
the shoreline when it struck the birds, admiralty jurisdiction would attach, even
if the plane were then able to make it back to the airport and crash land there.
These are hardly the types of distinctions with which admiralty law was
designed to deal.' 409 U.S. at 267, 93 S.Ct. at 504

It is interesting to note that the Supreme Court did not irrevocably foreclose the
possibility of characterizing as maritime even an aircraft under circumstances
where the function of the airplane would parallel the function of the vessel: 'An
aircraft in that situation (flying from New York to London and crashing in the

mid-Atlantic) might be thought to bear a significant relationship to traditional

maritime activity because it would be performing a function traditionally
performed by waterborne vessels.' 409 U.S. at 271, 93 S.Ct. at 506. In the
instant case we have a vessel performing a function traditionally performed by
a vessel, the transportation of cargo on navigable waters
5

The traditional locality test for determining when a tort is within the admiralty
jurisdiction historically dates back to The Plymouth, 70 U.S. (3 Wall.) 20, 35,
36, 18 L.Ed. 125 (1866): 'The wrong and injury complained of must have been
committed wholly upon the high seas or navigable waters, or, at least, the
substance and consummation of the same must have taken place upon these
waters to be within the admiralty jurisdiction.' Despite such broad language, the
Supreme Court said in Executive Jet, 'that this Court has never explicitly held
that a maritime locality is the sole test of admiralty tort jurisdiction.' 409 U.S. at
261, 93 S.Ct. at 499

409 U.S. at 259, 93 S.Ct. at 498

'It should also be noted that, in attempting to determine exactly what constitutes
a tort for maritime jurisdictional purposes, the courts have generally made 'tort'
synonymous with 'injury', and have looked to the place where the impact
causing the injury occurred, rather than to the place where the negligent act
occurred.' 7A, Moore, Federal Practice .325(2) n. 4